SLAP IN THE FACE FOR KARUA?

THE STANDARD
NAIROBI, KENYA
April 3, 2009

By Standard Team

President Kibaki appeared to pull the rug from under the feet of Justice Minister Martha Karua, who said she was not aware of the appointment of the seven judges sworn-in Thursday.

The appointments elicited mixed reaction, with some leading lawyers and commentators dismissing them as cosmetic and falling short of wide-ranging reforms required in the Judiciary.

For the judges, however, yesterday was their day of glory as three of them had been humiliated in the botched December 2006 swearing-in ceremony. It was Ms Karua’s turn to suffer indignation as things were hatched and executed in her absence, without her apparent knowledge.

"I have also learnt about the appointments from the media and, therefore, I have no comment," she told The Standard on the telephone.

Only last week, Karua claimed the problem with the Judiciary stemmed from appointments as "they were picked on the basis of favouritism, cronyism and incompetence.

"The rule of law is in jeopardy and the Government and the people of Kenya will continue to stand and watch as things run as usual… the Judiciary must get down to make changes now. If it does not, the people shall," she said then.

Her thoughts were shared by many last night, with lawyer Paul Muite saying the problems in the Judiciary were institutional and no appointments could restore public confidence in the institution.

"My views are that only institutional reforms rather than personalities that will provide solutions," Mr Muite said.

The former MP proposed that the Judiciary be given budgetary autonomy, where it will not have to rely on the Executive for operational requirements.

"The solution is to amend the supreme law of the land to anchor the Judicial Service Bill in the Constitution," said Muite.

Vice-President Kalonzo Musyoka shared the sentiments, saying independence of the Judiciary would be guaranteed if the institution got its own funding.

He said the Judiciary wanted the Judicial Service Commission (JSC) to operate like the Parliamentary Service Commission (PSC) and control funds. But the controversy did not mar the joy of those appointed.

"This is the greatest day of my life," beamed Justice Alnashir Visram who, together with Justice Joseph Nyamu, were elevated to the Court of Appeal.

"I was looking forward to this for very many years and it has finally happened. I would like to thank the President for the confidence he has in me. I am grateful to God… it is by his grace and I am looking forward to my new appointment," an elated Justice Visram said.

For Justices Aggrey Muchelule, Florence Muchemi and Abida Ali-Aroni, it must have been a sigh of relief to take the oath of office after the December 2006 debacle when their swearing-in was called off without their knowledge.

Also sworn-in as High Court judge yesterday was Ms Maureen Odero, who has been a Chief Magistrate at the Kibera Law Courts. She is the daughter of the slain nationalist Tom Mboya. Justice Muchelule was the Chief Magistrate at the Milimani Commercial Courts, while Justice Muchemi was a principal magistrate.

Justice Aroni previously served as the chairperson of the Constitution of Kenya Review Commission (CKRC).

Unlike previous ceremonies, yesterday’s was shrouded in secrecy and the judges did not leave the Nairobi Law Courts robed.

Rear entry

Sources in the Judiciary told The Standard that Chief Justice Gicheru was at his chambers from 7.30am. Two other judges who were appointed yesterday were also seen in the precincts of the court at that time.

It was a hide-and-seek game for journalists seeking out the judges. At 10am, Justice Gicheru left his Chambers escorted by his security team. At precisely 12.23pm, the CJ was escorted into his Chambers by a security officer carrying his red robe and wig.

Seven minutes later, Muchelule, Odero, Muchemi and Aroni headed straight to the CJ’s Chambers.

Five minutes later, Justices Nyamu and Visram followed. The entire group used the High Court’s rear entry to leave for State House.

Former MP Justin Muturi, a lawyer, commended the appointed judges, but expressed reservations that slots created in the High Court and Court of Appeal in 2007 were being filled two years later.

"We must allow transparent appointments and a thorough vetting process. We have a Judiciary where people blacklisted by Parliament as unfit to hold public office are judges. This is a contradiction," said Mr Muturi.

Mr Tom Ojienda, the vice-president of Pan African Lawyers Union, said: "Kenya must embrace international benchmarks by picking the crËme de la crËme of judges who qualify. "The fact that those whose appointments had been blocked before are now on the Bench makes a big political statement," he said.

He went on: "The justice system is at a crossroads and the appointments do not reflect consensus from players in the justice system."

But Nairobi Metropolitan Development Minister Mutula Kilonzo praised the appointments, describing the new judges as good lawyers and people of probity.

Mutula, himself a lawyer and Senior Counsel, said more judicial reforms beyond the appointment of judges were needed.

"Bashing the Chief Justice in public is damage bound to be irreparable and it will be difficult to change public perception," Mutula added, in clear reference to Karua and Prime Minister Raila Odinga’s recent attacks on Justice Gicheru.

Mutula said if the PM and Karua were dissatisfied with the CJ’s performance, there were procedures outside the public glare that could be used to deal with the matter.

"The moment you allow people to start bashing the CJ, you destroy the institution and erode confidence," he added. The minister gave the example of the Uganda rebel group, the Lord’s Resistance Army, that agreed with Kampala to set up a division of the High Court where their disputes would be heard.